general jurisdiction is a broader form of personal jurisdiction and requires the defendant to have
even more contacts with the forum state than is required to meet the test for specific jurisdiction.
BACKGROUND

The facts, for the purposes of this motion, are as follows. Breschia, an Illinois citizen,
visited the Resort during September 1998. On September 25, 1998, while at the Resort, in
Mexico, Breschia entered into a Membership and Security Agreement with Promotora. The
contract expressly states that it was entered into in Mexico. The contract also states that Breschia
agreed to join the Club as a member. By signing the contract, Breschia was entitled to make
reservations to book a stay at the Resort by contacting the Club’s office in California.

On March 7, 2001, Breschia contacted the Club to reserve a stay at the Resort. The Club
did not contact or solicit Breschia to make a reservation. The reservation was taken by the Club
in California and was finalized and performed when Breschia arrived at the Resort in Mexico.

On May 15, 2001, during a visit to the Resort, Breschia alleges that she stepped, slipped,
and fell on an uneven floor, thus causing severe injuries. Breschia further claims that the
accident was a direct and proximate result of the Defendants’ negligent acts at the Mexican
resort. Asa result of this alleged negligence, Breschia claims to have suffered damages in excess

of $150,000.



Based on these facts, Breschia provides two theories for jurisdiction. First, Breschia
argues that the Club does business in Illinois through its website that allows Illinois residents to
enter into contracts with the Club. She did not allege that her injury was the result of the Club’s
website contact with Illinois. As noted earlier, a corporation’s activities must be of the character
and extent to justify the inference that the corporation has submitted to the general jurisdiction of
Illinois to do business in Illinois. Again, Breschia also contends that the catch-all provision of
735 ILCS § 5/2-209(c) permits the exercise of jurisdiction in Illinois over the Resort. The catch-
all provision establishes jurisdiction even if jurisdiction could not be established through one of
the enumerated clauses.

Here, the Club’s website is passive and not interactive. Visitors to
<www.paradisevaclub.com> cannot purchase memberships, make reservations, or complete any
other transactions on this site. The site expressly states that Club memberships may only be
purchased at the Resort in Mexico. Moreover, the visitor’s website only lists contact information
for the Club; only Club members may access the restricted, members-only link. “The site is only
an advertisement that tells the consumer” how to contact the Club. Therefore, this passive Club
website will not support a finding of specific jurisdiction. The website, by itself, is an
insufficient contact to hold that the Club has submitted to the general jurisdiction of the Illinois
courts.

In the specific jurisdiction context, a sliding scale is used to determine what level of
Internet interaction subjects a defendant to personal jurisdiction. Three different levels of
Internet interaction exist. The highest level, when the defendant conducts business over the

Internet through its active website, requires a website to be “interactive” and permit transactions



children who are visiting the Resort, the number of suites desired at the Resort, and a credit card
number. At the time the reservation is made, either a 25% or 100% deposit on the contract price
is charged; and visitors must accept or decline a guarantee and cancellation policy.

Breschia alleges that the Resort advertised in Illinois through other means. The Resort
maintains and advertises on fifty-three other websites. In 2002 and 2003, the Resort advertised
four times in Illinois newspapers. In addition, the Resort placed advertisements in airline ticket
jackets that were provided to travelers at O’Hare International Airport in Chicago, Illinois.
Finally, the Resort was also promoted through a vacation “co-op” partner, Apple Vacations, that
is based in Illinois. According to Breschia, Apple Vacations’s advertisements are distributed to
travel agents throughout Illinois.

A website that allows customers to make and pay for reservations over the Internet for
lodging in foreign states is not a sufficient basis for the exercise of general jurisdiction.

Arriaga v. Imperial Palace, Inc., 252 F. Supp. 2d 380, 384-87 (S.D. Tex. 2002); see also

Bell v. Imperial Palace Hotel/Casino, Inc., 200 F. Supp. 2d 1082, 1092 (E.D. Mo. 2001) (finding
that the exercise of general jurisdiction over the defendant was improper based solely on the
defendant’s website that accepted reservations).

In the case at bar, the Resort’s website only allowed users to make and pay for
reservations at the Resort, check the availability of suites, make other arrangements for their
vacation, and receive discounts for entering specific information about their vacation.
Therefore, the website, by itself, is not a continuous and systematic contact with Illinois that

justifies the exercise of general jurisdiction over the Resort.



ANALYSIS
Promotora

Promotora moved to dismiss Breschia’s Amended Complaint for lack of personal
jurisdiction. Breschia, in her response brief, stated that she did not oppose the Motion to Dismiss
as to Promotora. Therefore, Promotora’s Motion to Dismiss Breschia’s Amended Complaint is
granted.

The Resort

The Resort also moved to dismiss Breschia’s Amended Complaint for lack of personal
jurisdiction. Breschia provides two theories to suggest why jurisdiction is proper in this Court.
First, Breschia argues that the Resort does business in Illinois through its website that allows
Illinois residents to enter into contracts with the Resort. To do business in Illinois, a
corporation’s activities must be of the character and extent to justify the inference that the
corporation has submitted to the general jurisdiction of Illinois. Stein v. Rio Parismina Lounge,
695 N.E.2d 518, 523 (Ill. App. Ct. 1998). Secondly, Breschia contends that the catch-all
provision of 735 ILCS § 5/2-209(c) permits the exercise of jurisdiction in Illinois over the
Resort. This provision allows courts “to establish jurisdiction even where jurisdiction could not
be established through one of the enumerated clauses.” Hyatt Int’l Corp. v. Coco, 302 F.3d 707,
715 (7th Cir. 2002) (citations omitted).

As to her first jurisdictional theory, Breschia alleges that the Resort maintains a website,
<www.paradisevillage.com>, where visitors may make reservations, check rates and availability,
and make other arrangements at the Resort for their vacation. These functions also allow Illinois

residents to save 10% by providing their arrival and departure dates, the number of adults and



a local agent to specifically represent the Resort in Illinois. Apple Vacations was one of many
“co-op” partners that the Resort employed across the nation to advertise for the Resort in
brochures and catalogs. Moreover, the Resort’s website, as discussed earlier, is similar to a toll-
free reservation number.

Finally, it would not be reasonable or fair to require the Resort to litigate this case in
Illinois. The Resort’s only connections with Iinois are extremely tenuous and are based upon
national advertisements in brochures, catalogs, newspapers, and the website. “Generally,
national advertisements (including those on the internet) are insufficient to subject a defendant to
jurisdiction in IMinois.” David White Instruments, LLC y. TLZ, Inc., No. 02 C 7156, 2003 WL
21148224, at * 6 (N.D. Ill. May 16, 2003) (citation omitted). Therefore, the combination of the
website and the nationally based “co-op” advertising is not a continuous and systematic contact
with Illinois that justifies the exercise of general jurisdiction over the Resort under the catch-all
provision of 735 ILCS § 5/2-209.

Paradise Vacation Club

The Club moved to dismiss Breschia’s Amended Complaint as well. In her response,
Breschia argues that the Club maintains a website located at <www.paradisevaclub.com>. For
her second jurisdictional theory, Breschia contends that the Club placed advertisements in airline
ticket jackets that were provided to travelers at O’Hare International Airport in Chicago, Illinois;
the Club also directly mailed Illinois members a quarterly newsletter, entitled “Paradise Vacation
Club: Adventures in Paradise.” Finally, Breschia claims that the Club was also promoted
through a vacation “co-op” partner, Apple Vacations, that is based in Illinois, who distributes

advertisements throughout Illinois.


Minute Order Foy “a,

Iw . United States District Court, Northern District of Illinois
vange Maghipae Suge John W. Darrah “than Astened Judge
CASE NUMBER 02 C 3014 DATE 12/2/2003
CASE Breshchia vs. Paradise Vacation Club, et. al.
TITLE

of the motion being presented.]

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

Order. Case Closed. Any pending dates or motions are terminated as moot.

(1) ff [For further detail see order attached to the original minute order.]

MOTION:

DOCKET ENTRY:

ql) Oo Filed motion of [ use listing in “Motion” box above.]

(2) a Brief in support of motion due

(3) im} Answer brief to motion due___. Reply to answer brief due.

(4) Oo Ruling/Hearing on setfor at

(5) ia Status hearing(held/continued to] [set for/re-set for]on__——s set for at

(6) o Pretrial conference[held/continued to] (set for/re-set for)on___—s set for at

(7) Oo Trial{set for/re-set for]on__—_ at.

(8) Oo {Bench/Jury trial] [Hearing] held/continued to at

(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) Ci Local Rule 41.1 CIFRCP41(a)(1) CI FRCP41(a)(2).

qo) [Other docket entry] For the reasons stated in the attached memorandum opinion and order,

defendants’ motion to dismiss complaint for lack of personal jurisdiction [27-1] and defendants’ Rule
12(b)(2) motion to dismiss the amended complaint [28-1] are granted. Enter Memorandum Opinion and

No notices required, advised in open court,

No notices required. number of notices

- Document

., Number

Notices mailed by judge's staff. BEC 0 4 2003

Notified counsel by telephone.

o | Docketing to mail notices.

Mail AO 450 form.

Luf|09 LolaLsia ‘sn
SENT)

Copy to judge/magistrate judge.

date mailed notice

courtroom = HOKE Hd E- DRC EU
MF deputy’s |
T U5-C2abslme received in

initials
central Clerk's Office maiting deputy initiats



CONCLUSION

For the foregoing reasons, the Club’s, the Resort’s, and Promotora’s Motions to Dismiss

are granted; and the matter is dismissed.

4
|
Dated: / 2 -2-6 mB 1, A
ee District Judge

ll


between the user and the website owner. The intermediate level, when the defendant maintains
an interactive website, allows for an exchange of information between the website owner and the
host computer. “[T]he exercise of jurisdiction is determined by examining the level of
interactivity and commercial nature of the exchange of information that occurs on the website.”
Finally, the lowest level of interaction exists when the defendant maintains a passive website that
only posts information. In this level, no interaction between the website owner and the end user
exists; therefore, a passive website, like the Club maintains, “is not grounds for the exercise of
personal jurisdiction.” Aero Prods. Int'l, Inc. v. Intex Corp., 2003 WL 31109386, at * 5 (N.D.
Ill. 2002) (citations omitted).

Breschia’s second theory to exercise jurisdiction over the Club, the catch-all provision of
735 ILCS § 5/2-209(c), also fails. As discussed earlier, this combination of advertising is not
able to support the exercise of jurisdiction. First, none of Breschia’s claims arise out of the
Club’s transactions in Illinois. Secondly, the Club did not specifically target Illinois; it only
worked with “co-op” partners nationwide to advertise the Club. Third, in contrast to the Resort’s
website, the Club’s passive website does not even allow Illinois residents to book reservations or
become a Club member. Therefore, the Club’s activities are not sufficiently significant, varied,

or extensive enough to establish jurisdiction in Illinois under the catch-all provision.

10



Breschia’s second jurisdictional theory, the catch-all provision of the Illinois statute, also
fails. According to Breschia, engaging in “significant, extensive, and varied advertising .. . in an
effort to attract guests” establishes jurisdiction under the catch-all provision. Mattsson v. Gerry
Wood Prods. Co., No. 95 C 2314, 1996 WL 147921, at * 8 (N.D. Ili. Mar. 28, 1996)
(“Mattsson”). The Mattsson advertising included brochures carried by Illinois travel agencies,
advertisements in national magazines that include postcards and a toll-free number, and a
computerized reservation system that enabled Illinois travel agencies to easily reserve a room;
moreover, plaintiff relied on these advertisements when she decided to stay at the defendant’s
hotel. The Mattsson court concluded that the exercise of jurisdiction was proper based on these
facts. See also Pubs. Int’l, Ltd. v. Burke/Triolo, Inc., 12\ F. Supp. 2d 1178, (N.D. Ill. 2000)
(explaining that the combination of advertising through a website that solicits information from
users and employing a local Illinois agent was enough to subject the defendant to the general
jurisdiction of the Illinois courts).

Here, the combination of a website and advertising is not enough to justify the exercise of
jurisdiction over the Resort. Breschia’s accident occurred in 2001, but she did not see the
American Airlines ticket-jacket advertisement for the Resort until 2002. Contrary to Mattsson,
Breschia does not allege, nor can she allege, that she relied on any other advertisements by Apple
Vacations or the Resort when she decided to visit the Resort in Mexico. Accordingly, Breschia
cannot prevail under a specific jurisdiction basis.

Secondly, the advertising in this case is not so extensive to require the Resort to defend
itself in the Illinois courts. The Resort did not specifically target Illinois; but, rather, they worked

with “co-op” partners nationwide to advertise the Resort. In addition, the Resort did not employ


state] such that the maintenance of the suit does not offend ‘traditional notions of fair play and
substantial justice.’” International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting
Milliken v. Meyer, 311 U.S. 457, 463 (1940); Newman & Assoc. v. Florabelle Flowers, 15 F.3d
721, 725 (7th Cir, 1994). This determination depends on whether the plaintiff asserts specific or
general jurisdiction against the defendant. RAR, 107 F.3d at 1277.

Specific jurisdiction “refers to jurisdiction over a defendant in a suit ‘arising out of or
related to the defendant’s contacts with the forum.” RAR, 107 F.3d at 1277 (quoting
Helicopteros Nacionales de Columbia, S.A. v. Hall, 486 U.S. 408 (1984)). To determine whether
specific jurisdiction exists, a defendant must have “purposefully established minimum contacts
within [Illinois];” and those contacts must make personal jurisdiction reasonable and fair under
the circumstances. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985). Defendant must
have “purposely availed” itself of the privilege of conducting activities within the forum state,
invoking the benefits and protections of its laws such that they would “reasonably anticipate
being haled into court there.” Asahi-Metal Indus. Co. v. Superior Court, 480 U.S. 102, 119
(1987).

Plaintiff must satisfy two elements for specific jurisdiction: (1) the plaintiff must show
that the defendant is amenable to service of process; and (2) the plaintiff must establish that
haling the defendant into court is consistent with the Fourteenth Amendment’s due process
clause. LFG, LLC. v. Zapata Corp., 78 F Supp.2d 731, 734 (N.D. Ill. 1999).

On the other hand, “[g]eneral jurisdiction . . . is for suits neither arising out of nor related
to the defendant’s contacts, and it is permitted only where the defendant has ‘continuous and

systematic general business contacts’ with the forum state.” RAR, 107 F.3d at 1277. Therefore,



defendant’s affidavits or exhibits. The remaining facts come from the declarations and exhibits
submitted by the parties. All factual disputes must be resolved in favor of the plaintiff.

In diversity actions, a federal court has personal jurisdiction over a non-resident
defendant only if a court of the state in which the federal court sits would have personal
jurisdiction. Dehmlow v. Austin Fireworks, 963 F.2d 941, 945 (7th Cir. 1992) (citation omitted).
A determination of whether an Illinois court would have jurisdiction requires an examination of
three sources of law: “(1) state statutory law, (2) state constitutional law, and (3) federal
constitutional law.” RAR, Inc. v. Turner Diesel Ltd., 107 F.3d 1272, 1276 (7th Cir. 1997) (RAR).

Under Illinois law, a court can have personal jurisdiction over a non-resident via the
state’s long-arm statute. 735 ILCS § 5/2-209. The statute permits the exercise of jurisdiction
over claims that arise out of a number of enumerated acts, such as transacting any business
within Illinois. 735 ILCS § 5/2-209(a)(1). In addition, personal jurisdiction is proper against any
corporation doing business within Ilinois. 735 § ILCS 5/2-209(b)(4). The statute also states that
an Illinois court may exercise jurisdiction on any basis permitted by the state or federal
constitution. 735 ILCS § 5/2-209(c). Therefore, the statute authorizes the exercise of personal
jurisdiction by the Illinois courts to the fullest constitutional limit; and the statutory analysis
collapses into a two-prong analysis: one based on the Illinois Constitution, and one based on the
United States Constitution. RAR, 107 F.3d. at 1276.

“filinois courts have given little guidance as to how state due process protection differs
from federal protection in the context of personal jurisdiction.” RAR, 107 F.3d at 1276. The Due
Process Clause of the United States Constitution permits an Illinois court to exercise jurisdiction

over a non-resident defendant only if the defendant has “certain minimum contacts with [the


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
ROSE BRESCHIA, )
)
Plaintiff, )
) No. 02 C 3014

Y. )

) Judge John W. Darrah
PARADISE VACATION CLUB, INC., d/b/a )
PARADISE VILLAGE BEACH RESORT AND SPA; )
PARADISE VILLAGE BEACH RESORT AND SPA, )
individually; and )
PROMOTORA MARYSOL, S.A. DE C.V., )
)
Defendants. )

MEMORANDUM OPINION AND ORDER
The Plaintiff, Rose Breschia, filed suit against the Defendants, Paradise Vacation Club,
Inc. (“the Club”), Paradise Village Beach Resort and Spa (“the Resort”), and Promotora Marysol,
S.A. De C.V. (“Promotora”), for a personal injury in Mexico. Now before the Court is the
Defendants’ Federal Rules of Civil Procedure 12(b)(2) Motions to Dismiss the Amended
Complaint for lack of personal jurisdiction. For the reasons that follow, the motions are granted;

and the matter is dismissed.

LEGAL STANDARD

Plaintiff has the burden of establishing a prima facie case of personal jurisdiction. See
Steel Warehouse of Wisc., Inc. v. Leach, 154 F.3d 712, 714 (7th Cir. 1998). When deciding
whether the plaintiff has made a necessary showing, a court can look to affidavits and exhibits
submitted by each party. Turnock v. Cope, 816 F.2d 332, 333 (7th Cir. 1987). When determining

whether the plaintiff has met the burden of establishing a prima facie showing of jurisdiction,

47

jurisdictional allegations in the complaint are taken as true, unless controverted by the